delivered the opinion of the court, June 2d 1879.
The questions of fact presented by the pleadings in this case justified the admission of the testimony complained of in the first seven assignments of error; and, in view of the testimony, properly before the jury, there was no error in the instructions of the court covered by the remaining assignments. The declaration, as originally filed, contained a single count in debt on the policy of insurance, averring in due form compliance with the terms and conditions thereof and the refusal of the company to pay the insurance money. Subsequently, an additional count was filed, based on a contract of life insurance between the defendant company ana the insured, consisting of a policy and the application therein referred to, together with a contemporaneous explanation o.f the meaning of certain. questions therein contained and the answers required to be made thereto. The questions referred to are contained in form B, entitled, “ Questions to be asked by the medical examiner, who will fully explain the questions and witness the signature of the person examined.” It was claimed that the authority of the medical examiner, to explain the questions to be answered by the applicant, was thus clearly recognised, and that the latter in answering might well be governed by such explanations as were made by the medical examiner. The defendant, without questioning the sufficiency of the second count, by demurrer or otherwise, pleaded nil debet, and two special pleas to both counts, and, in addition thereto, payment with leave to the first *371count. The special pleas were respectively traversed and thereupon issue was joined.
The questions of fact, raised by the issues on the first count, were substantially whether the plaintiff and her husband had complied with all the terms and conditions of the policy, required of them or either of them; and, more especially^ whether, prior to making the answers and statements referred to in the special pleas, the insured had been afflicted with fits and convulsions or had been seriously ill, or had received personal injuries from which serious illness had resulted.
The questions presented by the issue on the second count, in addition to some of those raised by the first, were in substance whether the company, through its medical examiner and by the presence and assent of its general agent, had made the contemporaneous explanations of the questions therein averred, to wit': that the meaning of the questions was to obtain from the insured a statement of all matters that would permanently affect his general health; that all the company desired to know were such matters as would influence the risk or chances of life of the insured, and that a temporary hurt could have no effect: whether, prior to making the application, the insured had been afflicted with serious illness or any of the diseases mentioned, or had sustained severe personal injury, any one or more of which had produced a permanent effect on his general health1; and whether it was true, as averred, that the diseases, injuries, &e., mentioned in the second count, had produced only a temporary effect, without impairing his general health or diminishing his chances for life.
It will thus be seen that the questions of fact presented by the issue upon the first are in some respects different from those involved in that upon the second count. Hence, testimony that was strictly proper under the one might not have been admissible under the other, if it had been specially objected to on that ground; but, no such objection was made, and, if the testimony was competent and relevant under either count, its admission generally was not such error as calls for reversal. The court was not asked to distinguish between the two counts or instruct the jury to return a separate verdict as to each. In case the plaintiff under the evidence was entitled to recover, there was no room for controversy as to the amount. It was the same under each count, — the sum named in the policy, with interest. If there was a recovery at all, it could be neither more nor less.
The testimony, tending to prove the terms of the contract as laid in the second count, was introduced and submitted to the jury, who, by their general verdict on both counts, found in effect that all the material averments were true. If the contract of insurance, ,as claimed by the plaintiff below, was thus established, it was certainly competent and material, under the pleadings, to prove *372that at the time of making the contract the health of the insured had not been permanently affected as a life risk by any of the means complained of; that the effect of the injuries, sickness, &c., on his general health had been only temporary; that neither singly nor together had they produced any permanent effect on his health or rendered his insurable risk less valuable to the company. This of course involved an inquiry into his. general health. Much of the testimony, the admission of which is complained of, was of this character, and it appears to us that it was clearly competent under the issues presented by the pleadings. The report of Dr. Orth, the medical examiner of the company, as well as his testimony, was competent and relevant, at least under the second count. He testified that at the time he made the examination for the company, the health of the insured was good; that he was a man of correct habits so far as he knew, and his general appearance was good; that he met him every day and “ considered him a healthy man.” To the same effect, but more pointed and specific, was the testimony of Mr. Latson. His acquaintance with the insured commenced in 1866, and he was present when Dr. Orth made the examination for the company. Speaking of Mr. McMurdy’s health during the time he was acquainted with him, he says, he “ was a man of extraordinary physical development and seemed to be in perfect health. He was vigorous, well-built, with perfect physique and stalwart frame; he seemed to be a man of the most perfect health I ever knew.” This and other testimony of like nature had a direct and important bearing on one or more of the questions to be passed on by the jury; and without specially noticing the several assignments of error, in relation to the admission of testimony, it is sufficient to say that neither of them is sustained.
The testimony being properly before the jury, it was of course the province of the court to instruct them as to its bearing and effect in case they found the facts to be as claimed by the plaintiff. In view of the issues of fact presented by the. pleadings there was no material error in the instructions given to the jury either in the general charge or in answer to points submitted. In referring to the testimony, as to what occurred at the time the application for insurance was being prepared and the explanation then made of the purpose and meaning of certain questions, the learned judge said to the jury: “ if this explanation satisfies you that he acted in good faith, in answering these questions ; was guilty of no fraud, but answered them truly as he believed them to be in view of the explanations made at the time by the company’s agent, then his answers are not to be held as estopping recovery; simply because viewing them in their limited aspect as to the printed questions would be unfair to the plaintiff, if, in point of fact, the answers were super-induced by an explanation which the agent made at the time.” *373Again, in portions of the charge embraced in the eleventh and twelfth assignments of error, the jury were instructed that if the insured was misled by the statement or explanation of the agent, the plaintiff was entitled to protection against a strictly literal construction of the printed questions and answers thereto. The learned judge said, “ if in good faith the insured answered these questions in view of the interpretation that was presented to him by the agent, then, gentlemen, there is no fraud; and if such you find to be the case, you must read in these interrogatories the explanation made by the agent at the time, and then read his answers to the interrogatories in the light of such explanations.” In other portions of the charge and answers to points submitted the same views are expressed in different language, so that the jury could not fail to understand that, in connection with the answers of the applicant, it was their duty to consider not only the questions as they appeared in the printed form, but also the explanations and construction given to them by the company’s agent at the time. In view of the testimony before the jury there was no error in this. Indeed the learned judge could not have withheld the instructions complained of without ignoring the force of clear and uncontradicted testimony.
We have not overlooked the fact, so strongly insisted on by the learned counsel for the company, that the insured warranted the truth of his statements and answers to questions contained in the application. This would possess all the controlling effect claimed for it, if the company had not authorized its agent to construe and explain the questions. This authority as we have seen is clearly expressed on the face of the application. In fact it is made the duty of the medical examiner, not only to propound, but also to “fully explain” the questions contained inform B. Surely the object of this could not have been to deceive and entrap the insured. Any intelligent applicant for insurance would infer from what is stated in the caption to the questions that, in answering them, he should do so with reference to the construction and explanation given at the time. If the questions were explained and answered in good faith according to the interpretation put upon them by the representative of the company at the time, there could he no reasonable objection to proving the facts and, submitting them to the jury as was done in this case. If the court had excluded the testimony complained of, and held the plaintiff below to a strict construction of a warranty according to the letter of the questions as they appear in the printed form, a grave error would have been committed. As it was we discover no error in the record that would justify a reversal of the judgment.
■ Judgment affirmed.